Girija Nandan Prasad vs Manako Devi

S.N. Jha, J.—This civil revision is directed against order dated 4.6.96 in Misc. Case No. 6 of 1995 which the petitioner had filed for restoration of Title Suit No. 379 of 1994. By the impugned order the court below has refused to restore the suit and dismissed the miscellaneous case.

From the order sheet (Annexure-1) it appears that the petitioner was asked to deposit court fee of Rs. 4504.50 P. and talbana on 7.3.95. The court granted five adjournments thereafter for compliance of the order. Since the petitioner did not ultimately pay the amount of court fee the court rejected the plaint ins terms of Order 7, Rule 11(c) CPC. It is this order dated 23.6.95 the petitioner wanted to be recalled in the Misc. case.

Counsel for the petitioner submitted that the court below has erred in disallowing the misc. case as not maintainable, particularly when an order to the contrary had been passed by the predecessor court on 5.2.96. He submitted that the court was competent to recall the order and restore the suit u/s 151 of the Code.

The argument that the miscellaneous case has been found to be not maintainable is not borne out by the order. It is true that at the end of the order the court below has used the word ''not maintainable'' but what it really wanted to convey that it did not find merit in the case because the petitioner had failed to deposit half of the amount of the required court fee. However, on merit of the case, 1 am of the opinion that the court below ought to have exercised its discretion in favour of the petitioner. It is true, as indicated above, that the court granted as many as six adjournments to the petitioner to deposit the defied court fee an application for recall of the order, however, was filed soon after the impugned order was passed. The court below should have given opportunity to the petitioner to deposit the deficit court fee. The view taken by the court below appears to be rather technical which can not be said to be conducive to the cause of justice. An order rejecting plaint it amounts to decree within meaning of Section 2(2) of the Code but as held by a Full Bench of this Court in Bajrang Rai and Others Vs. Ismail Mian and Others, , the existence of remedy of appeal does not preclude the court from exercising power and restoring the suit u/s 151 of the Code.

An the above premises, the impugned order dated 4.6.96 is set aside. The order dated 23.6.95 in Title Suit No. 379 of 1994 is also set aside. This order, however, is subject to the petitioner''s depositing the required amount of deficit court fee by 1st December, 1997.

This application stands allowed in the above terms.